TESSY MICHAEL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is mother of John Paul,seeks to quash Ext.P5 order and to issue a writ of habeas corpus commanding the 4th respondent to produce John Paul and to set him at liberty.

(2.) Petitioner's son John Paul (hereinafter referred to as 'the detenu') is under detention under the Kerala Anti-Social Activities Prevention Act, 2007 (hereinafter referred to as 'the KAAPA' for brevity). The petitioner states that the detention is based on a report dated 31.12.2008 of the Deputy Commissioner of Police (Law & Order). Alleging that the detenu is a registered rowdy involved in five criminal cases, the Deputy Commissioner, as per Ext.P1, requested the District Magistrate to pass order of preventive detention invoking Section 3(1) of KAAPA. A supplementary report dated 21.01.2019, Ext.P2, was submitted stating that the detenu who was under judicial custody in connection with Crime No.1954/2018 was granted bail by the Court of Sessions. Yet another supplementary report dated 04.02.2019, Ext.P3, was also submitted along with a confession statement of the accused. Based on these reports, the District Magistrate on 05.03.2019 passed Ext.P5 order of detention, on grounds enumerated in Ext.P6. The order was executed on 08.03.2019. The order was approved by the Government on 18.03.2019. His case was referred to Advisory Board on 19.03.2019. The Board after hearing the detenu on 12.04.2019, reported on 29.04.2019 that there are sufficient causes to detain the person. Accordingly, as per Ext.P7, the petitioner was informed that the Government has confirmed the order of detention under Section 10(A) for a period of six months.

(3.) The petitioner contends that the time gap between the last prejudicial activity and the date of passing the detention order vitiates the order of detention. The detention order stated that the detaining authority has perused the bail order in Crime No.1954/2018 and confession statement of detenu. However, the detenu was not served with a copy of confession statement. In respect of the proceedings initiated against the detenu under Section 107 Cr.P.C., the detaining authority has not properly applied its mind. In fact, the sponsoring authority has misled the detaining authority, contends the petitioner. The sponsoring authority pressurised the detaining authority to pass Ext.P5 order. In view of the said reasons, the order of detention is vitiated.